STATE OF INDIANA

COUNTY OF MARION

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SS:

BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

Caraustar mill group, inc.
WAMPLER SERVICES, INC.,

Respondents.

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Case No. 2007-17396-A
                2007-17405-A

 

 

AGREED ORDER

 

Complainant and Respondents desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order.  Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein.  Respondents’ entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondents may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

 

I.  FINDINGS OF FACT

 

1.                  Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

 

2.                  Respondents are Caraustar Mill Group, Inc. (“Respondent 1”) and Wampler Services, Inc. (“Respondent 2”).  Caraustar Mill Group (“Respondent 1”) owns the former Lafayette Paperboard Company, a recycled paperboard paper manufacturing source with Permit No. F157-25344-00002, (“Permit”) located at 40 Chestnut Street, Lafayette, Tippecanoe County, Indiana (“Site”).  Wampler Services, Inc. (“Respondent 2”) was contracted to perform demolition services at the Site.

 

3.                  IDEM has jurisdiction over the parties and the subject matter of this action.

 

4.                  Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) on January 16, 2008 via Certified Mail to:

 

Thomas C. Dawson, Jr., President

Corporation Service Company, Registered Agent

Caraustar Mill Group, Inc.

251 E. Ohio Street   Ste. 500

5000 Austell Powder Springs  Ste. 300

Indianapolis, IN  46204

Austell, GA  30106

 

John Wampler, President & Registered Agent

 

Wampler Services, Inc.

 

1270 Washington Avenue

 

Frankfort, IN  46041

 

 

5.                  During an investigation including an inspection on October 9, 2007 conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 326 IAC 14-10-1, 326 IAC 18-1-3(1) and Condition C.7(g) of Federally Enforceable State Operating Permit # 157-25344-00002, the owner or operator of a demolition or renovation activity is required to have an Indiana licensed inspector thoroughly inspect the facility for the presence of asbestos prior to engaging in any activity that could disturb the asbestos.

Respondent 1 failed to have the facility inspected by an Indiana licensed inspector prior to engaging in an activity that could disturb asbestos, in violation of 326 IAC 14-10-1 and Condition C.7 (g) of the FESOP.

 

b.         Pursuant to 326 IAC 14-10-3(1) and Condition C.7 (a) of Federally Enforceable State Operating Permit # 157-25344-00002, each owner or operator of a demolition or renovation activity is required to provide IDEM with written notice of the intention to demolish or renovate and update the notice as necessary.  All demolition projects require notification whether or not asbestos is present.

Respondent 1 failed to submit demolition notification to IDEM before demolition began,in violation of 326 IAC 14-10-3(1) and Condition C.7 (a) of the FESOP.

 

c.         Pursuant to 326 IAC 14-10-1, the owner or operator of a demolition or renovation  activity is required to have an Indiana licensed inspector thoroughly inspect the facility for the presence of asbestos prior to engaging in any activity that could disturb the asbestos.

On or about October 9, 2007, Respondents failed to have facility inspected by an Indiana licensed inspector prior to engaging in an activity that could disturb asbestos, in violation of 326 IAC 14-10-1.

 

d.         Pursuant to 326 IAC 14-10-3(1), each owner or operator of a demolition or renovation activity is required to provide IDEM with written notice of the intention to demolish or renovate and update the notice as necessary.

On or about October 9, 2007, Respondents failed to provide IDEM with notification, in violation of 326 IAC 14-10-3(1).

 

e.         Pursuant to 326 IAC 14-10-4(11), any stripped, disturbed, or removed friable asbestos materials must be stored securely to prevent access to the material by unauthorized persons.

On or about October 9, 2007, Respondents failed to secure asbestos on site in a manner that would prevent access by unauthorized persons, in violation of 326 IAC 14-10-4(11).

f.          Pursuant to 326 IAC 14-10-4(9), visible contamination of asbestos shall be collected upon the completion of removal operations.

On or about October 9, 2007, Respondents failed to collect visible contamination of asbestos, in violation of 326 IAC 14-10-4(9).

g.         Pursuant to 326 IAC 18-1-3(a) (5), no person shall implement an asbestos project at a facility without current licensing by IDEM.

On or about October 9, 2007, Respondents implemented an asbestos project and are not currently licensed contractors, in violation of 326 IAC 18-1-3(a) (5).

h.         Pursuant to 326 IAC 18-1-3(d) (1), an asbestos contractor shall implement asbestos projects by employing a licensed asbestos worker.

On or about October 9, 2007, Respondents implemented an asbestos project and did not use currently licensed workers, in violation of 326 IAC 18-1-3(d) (1).

5.         Respondents contend that after acquiring the site from Jefferson Smurfit, they acted reasonably in relying upon the Smurfit documents that were provided to them that indicated that all of the identified asbestos had been removed and that no other areas of asbestos-containing materials or potential asbestos-containing materials exist.  Respondents further assert that they acted reasonably in relying on Smurfit documents before undertaking to dismantle the former boiler and demolish the facility.

 

6.         In recognition of the settlement reached, Respondents waive any right to administrative and judicial review of this Agreed Order.

 

II.  ORDER

 

1.                  This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondents.  This Agreed Order shall have no force or effect until the Effective Date.

 

2.                  Respondents shall comply with 326 IAC 14-10-1, Emission Standards for Asbestos; Demolition and Renovation Operations and Asbestos

 

3.                  Respondents shall comply with 326 14-10-3 Notification Requirements.

 

4.                  Respondents shall comply with IAC 326 14-10-4, Procedures for Asbestos Emission Control.

 

5.                  Respondents shall comply with IAC 326 18 – Asbestos Management.

 

6.                  All submittals required by this Agreed Order, unless Respondents are notified otherwise in writing by IDEM, shall be sent to:

 

Deborah Cole, Case Manager

Air Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.                  Respondents are jointly and severally liable for a civil penalty of Fifteen Thousand Seven Hundred Fifty Dollars ($15,750.00).  Within thirty days (30) days of the Effective Date of the Agreed Order, Respondent shall pay a portion of this penalty in the amount of Three Thousand One Hundred Fifty Dollars ($3,150.00). Civil penalties are payable by check and to the Asbestos Trust Fund.  Checks shall include the Case Number and should be mailed to:

 

Indiana Department of Environmental Management

Cashier – Mail Code  50-10C

100 North Senate Avenue

Indianapolis, IN  46204-2251

 

In lieu of payment to IDEM of the remaining civil penalty, Respondents shall make a cash payment to the Indiana Finance Authority (“IFA”) to fund a Supplemental Environmental Project (“SEP”) of activities related to brownfield redevelopment at a brownfield site (“Brownfield Site”) in Lafayette, Indiana. Respondents will make a payment in the amount of Twelve Thousand Six Hundred Dollars ($12,600.00) to fund SEP activities at the Site. Respondents shall make such payment to the IFA within thirty (30) days of the Effective Date of this Agreed Order.  Payment to the IFA satisfies Respondents’ obligation to undertake a SEP to offset a portion of the civil penalty assessed in this matter. Implementation of this SEP will benefit the community by rejuvenating neighborhoods, increasing the tax base, mitigating threats to human health and the environment, and/or reducing blight.

 

The Brownfield Site at which the SEP proceeds will be spent will be agreed upon among Complainant, Respondents, the City of Lafayette and the IFA and will be subject to final approval by the Brownfields Program.  The IFA will account for the SEP payment in a Brownfield Site and/or community –specific account and will require the City of Lafayette to execute a financial assistance agreement with the IFA, under which the Brownfield Program will oversee the work undertaken at the Site funded by SEP proceeds.  The IFA will notify IDEM’s Enforcement Case Manager when SEP-funded activities at the Site are complete.

 

In the event that Respondents do not make the SEP payment within thirty (30) days of the Effective Date of this Agreed Order, the full amount of the civil penalty as stated in this paragraph, plus interest established by IC 24-4.6-1-101 on the remaining amount, less the portion of the civil penalty Respondents have already paid, will be due to IDEM within fifteen (15) days from Respondents’ receipt of IDEM’s notice to pay.  Interest, at the rate established by IC 24-4.6-1-101, shall be calculated on the amount due from the date which is thirty (30) days after the Effective Date of this Agreed Order until the full civil penalty is paid.

 

Payment for the SEP is payable by check to the “Indiana Finance Authority.”  The text “SEP-City of Lafayette” and the Case Number of this action shall be included on the memo line of the check. The check shall be mailed to:

 

Andrea Robertson

Indiana Brownfields Program-SEP

100 North Senate Avenue

Room 1275

Indianapolis, IN 46204

 

Respondents shall provide Complainant with documentation of payment to the Indiana Finance Authority within one (1) week of such payment.

 

8.                  This Agreed Order shall jointly and severally apply to and be binding upon Respondents and their successors and assigns.  Respondents’ signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.  No change in ownership, corporate, or partnership status of Respondents shall in any way alter their status or responsibilities under this Agreed Order.

 

9.                  In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

 

10.             Respondents shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred.  Respondents shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

11.             This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit.  This Agreed Order, and IDEM’s review or approval of any submittal made by Respondents pursuant to this Agreed Order, shall not in any way relieve Respondents of their obligation to comply with the requirements of their applicable permits or any applicable Federal or State law or regulation.

 

12.             Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondents’ compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation.  Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondents may incur as a result of Respondents’ efforts to comply with this Agreed Order.

 

13.             Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

 

14.             Nothing in this Agreed Order shall prevent IDEM, or anyone acting on its behalf, from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action.  IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondents may incur as a result of such communications with the EPA or any other agency or entity.

 

15.             This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondents.

 

 

TECHNICAL RECOMMENDATION:

RESPONDENT:

 

Department of Environmental Management

Caraustar Mill Group, Inc.

 

 

 

 

By: _________________________

By:  _________________________

 

 

Craig Henry, Chief

 

 

 

Enforcement Section

Printed: ______________________

 

Office of Air Quality

 

 

 

Title: ________________________

 

 

 

 

Date: __________________

Date: _______________________

 

 

 

 

 

 

 

 

RESPONDENT:

 

 

Wampler Services, Inc.

 

 

 

 

 

By:  _________________________

 

 

 

 

 

Printed: ______________________

 

 

 

 

 

Title: ________________________

 

 

 

 

 

Date: _______________________

 

 

 

 

COUNSEL FOR COMPLAINANT:

COUNSEL FOR RESPONDENT:

 

For the Department of Environmental Management

 

 

 

 

 

By: ________________________

By: ________________________

 

 

Deputy Attorney General

 

 

 

 

 

Date: _______________________

Date: ______________________

 

 

 

COUNSEL FOR THE INDIANA FINANCE AUTHORITY

 

For the Indiana Brownfields Program

 

 

 

By: _______________________________________

 

Assistant Director & General Counsel

 

Date:

 

 

 

CITY OF LAFAYETTE

 

For the City of Lafayette

 

 

 

By: _______________________________________

 

Terry Roswarski, Mayor

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

______

DAY OF

________________________

, 200

___

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For the Commissioner:

 

 

 

Signed February 25, 2009

 

Daniel Murray

 

Assistant Commissioner

 

Office of Air Quality